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decided: January 29, 1988.


Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Andrew Musiolowski, Dec'd v. U.S. Steel Corporation, No. A-87355.


Simon V. John, John & John, for petitioner.

Robert C. Jones, with him, James D. Strader, for respondent.

Judges MacPhail and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish. Judge MacPhail concurs in the result only.

Author: Kalish

[ 117 Pa. Commw. Page 490]

Petitioner, Rose Musiolowski, seeks review of a determination by the Workmen's Compensation Appeal Board (Board) denying her widow's claim for benefits upon the death of her husband, Andrew Musiolowski (decedent).

Petitioner's claim is based on the decedent's death resulting from pneumoconiosis sustained during the course and scope of his employment with the respondent U.S. Steel Corporation for thirty-six years.

The Board, holding that the petitioner had not met her burden of proof, reversed the referee's award of compensation. We remand to the Board.

Section 301(c)(2) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411(2), provides "that whenever occupational disease is the basis for compensation, for disability or death under this act, it shall apply only to disability or death resulting from such disease. . . ." (Emphasis added.) Thus, it is the claimant's duty to show that there was a nexus between the occupational disease and death by unequivocal medical testimony.

[ 117 Pa. Commw. Page 491]

Appellate review must focus on whether there is rational support in the record, when reviewed as a whole, for the agency action. Republic Steel Corp. v. Workmen's Compensation Appeal Board, 492 Pa. 1, 421 A.2d 1060 (1980).

At the hearing before the referee, Dr. Charles Krifcher, a pathologist, testified for the petitioner that when he performed the autopsy he found that "the lungs were studded with numerous scattered nodules, many of which were firm and hard and black"; that the lungs had a sandpaper feel, all of which was "indicative of coal worker's pneumoconiosis." Notes of Testimony (N.T.) at 7. He said, "The main cause of death was extensive acute posterior myocardial infarction." N.T. at 13. He went on to explain what he meant when he said the myocardial infarction was the main cause of death, namely:

[T]hat coal worker's pneumoconiosis . . . had the effect of decreasing the amount of lung tissue available for exchange of oxygen or oxygenation of the blood; and, . . . [by] decreasing the ability of the blood to be oxygenated. . . . It increased the amount of ischemia. In other words, the blood that would have been able to get through might not have been as completely oxygenated as if this had not occurred.

N.T. at 14. He opined that the extensive coal worker's pneumoconiosis was a contributing cause of death.

On the other hand, Dr. Nathaniel E. Rodman, who examined the slides and autopsy report of Dr. Krifcher and the clinical data of decedent and testified on behalf of the respondent, found a tubercular lesion at least twenty or thirty years old; that the decedent had a history of heart disease; and that the decedent had simple coal worker's pneumoconiosis but that the disease did not cause the heart attack from which decedent died.

[ 117 Pa. Commw. Page 492]

The referee elected to believe the opinion of Dr. Krifcher over that of Dr. Rodman and awarded benefits.

The Board, recognizing that while the referee had the right to accept the opinion of Dr. Krifcher, nevertheless held that his testimony did not meet the standard of proof required under Kusenko v. Republic Steel Corp., 506 Pa. 104, 109, 484 A.2d 374, 376 (1984). Kusenko held:

Where there are multiple causes of death and the immediate cause was non-compensable, the requirements of § 301(c)(2) may be met by a showing with unequivocal medical evidence that the deceased suffered from an occupational disease and that it was a substantial, contributing factor among the secondary causes in bringing about death.

Thus, the standard under Kusenko applied only where there are multiple diseases and the immediate cause of death was due to a non-compensable disease; that in order to meet the requirement of section 301(c)(2) of the Act, under such circumstances, it is necessary to show that the occupational disease was a substantial factor in bringing about death or disability.

Since it took no additional testimony, the Board is legally bound by the referee's finding that the decedent's death was work related, provided that such finding is supported by competent evidence. Evans v. Workmen's Compensation Appeal Board (Anchor Hocking Corp.), 87 Pa. Commonwealth Ct. 436, 487 A.2d 477 (1985); Universal Cyclops Steel Corp. v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 305 A.2d 757 (1973).

Since the immediate cause of death was a non-compensable disease, in order to meet the standard of proof under Kusenko, the claimant had to prove by competent medical testimony that the work-related disease was a substantial contributing factor. While

[ 117 Pa. Commw. Page 493]

    cian did not use the term "substantial" in describing the contributing cause, expert testimony must be reviewed in its entirety to determine whether it meets the test of competency. Evans.

By implication, it appears that the Board may have concluded that petitioner did not meet the standard of medical proof required and that Kusenko may have been misapplied. There was no specific finding on this critical issue.

Thus, the matter is remanded to the Board for clearer findings on which this court can base its review.


Now, January 29, 1988, this matter is remanded to the Workmen's Compensation Appeal Board which is directed to issue a new decision consistent with this opinion and to recertify the record to this court within sixty (60) days.

Jurisdiction is retained.


Remanded for clarification. Case returned to Commonwealth Court. Second opinion filed. Reversed.


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